Ted Simons: Good evening and welcome to "Horizon," I'm Ted Simons. The Arizona Secretary of State's office is looking into the campaign of a candidate in the recall election of Senate President Russell Pearce. A Democratic official in Pearce's legislative district alleges the candidate, Olivia Cortes, is running a sham campaign aimed at taking Latino votes away from Pearce's main challenger Jerry Lewis. A Senate ethics committee met today to adopt rules of procedure. Democratic Senator David Schapira recommended the committee use the preponderance of evidence as its burden of proof, saying elected officials should be held to a higher standard.
David Shapira: I believe that preponderance of evidence is the standard we should use for these procedures for a couple of reasons. It is certainly higher than that of most criminal procedures. It is equal to that of most civil procedures. At the end of the day, if we use a standard higher than preponderance of evidence, we are doing our constituents a disservice. Choosing this level of burden of proof of preponderance of evidence, where whichever side has more evidence, that side will prevail, allows us to hold our members to a higher standard as our constituents would prefer.
Ted Simons: Instead, the Senate Ethics Committee voted along party lines to make a standard of clear and convincing evidence the burden of proof. Here to tell us more about the ethics hearing is "The Arizona Republic" reporter Mary Jo Pitzl. Good to see you, thanks for joining us.
Mary Jo Pitzl: Thanks for having me.
Ted Simons: We want to figure out how this is going to work. Ethics committee hearing: How does it work?
Mary Jo Pitzl: Well, this is a rarity, they don't happen too often. To a certain extent they are figuring it out as they go along. For example, today the Senate ethics committee met in executive session for about after hour and a half. The clip you ran is about the extent of their public meeting. Then they adjourned and have gone away and we don't know when they are going come back and meet. They haven't decided that yet. The importance of today's meeting -- and this is why I say in a way they are making it up as they go along, they knew they had to update the rules. Committee chairman Ron Gould said he felt their ethics rules were not up to date. They spent a lot of time behind closed doors hashing it out.
Ted Simons: Let's take a step back. The committee considers a complaint and then they vote on the investigation, correct?
Mary Jo Pitzl: Yes. That was a complaint brought by Democratic Senator Steve Gallardo last month. The committee last month sat down and decided on a bipartisan vote that they will proceed with an investigation.
Ted Simons: And the complaint was that senator Bundgaard broke Senate rules by breaking the law, and also engaged in activity that would adversely reflect on the Senate.
Mary Jo Pitzl: Correct, puts the Senate in a bad light.
Ted Simons: That was a 3-1 vote?
Mary Jo Pitzl: It was, yes. Senator Biggs was the lone dissenting vote. Senator Schapira was out of town at a conference so we had the three remaining to vote yes. Yarborough, Gould and Taylor.
Ted Simons: They decide, we're going to go forward and investigate this, we're going hear this. What are they going to do with this?
Mary Jo Pitzl: They are going have a preliminary hearing before they get into the full-blown hearing according to the rules they adopted today. At that point they will talk about some rules for putting out subpoenas and maybe some time frames, and a few more guidelines. So it'll be sort of organization, part 2. We don't know when that meeting will be held. They have to put schedules together.
Ted Simons: They have to figure that out, as well.
Mary Jo Pitzl: Yes.
Ted Simons: Regarding the preponderance of proof, the standard of proof, preponderance of evidence, I should say. Substantive evidence seems to have been used as far as ABSCAM at the Capitol. Clear and convincing is a pretty high standard.
Mary Jo Pitzl: That's up a notch or two in the legal domain. The committee chairman said he felt that was necessary because it was really important stuff. The tenure of a state senator hangs in the balance. The people that sent him there to represent him want to make sure they will have this nailed down. They asked Senator Gould what's clear and convincing; and he said when it's clear and convincing to me that something untoward happened.
Ted Simons: The pseudo courtroom, everyone takes their seats. Who asks the questions? Who decides who asks the questions? What's going on?
Mary Jo Pitzl: The committee chairman is pivotal to this. There will be a prosecutor. The burden of providing a prosecutor falls to Senator Gallardo since he brought the complaint. He has to bring on an attorney to act as a prosecutor at his own expense. He's already got a guy lined up, he says he's going serve pro bono and he may be bringing more attorneys on board to prosecute the case.
Ted Simons: This helps keep frivolous attacks down. If you're going file a complaint, it's your responsibility to find that prosecutor.
Mary Jo Pitzl: Exactly. It keeps the committee from having to act in the role of prosecutor, because they are the judge. They can't be the prosecutor and the jury at the same time.
Ted Simons: Is abscam being used as a template for this?
Mary Jo Pitzl: I think people are looking back at it. It was such a long time ago, and the standard was a tighter standard for members. And that was one that led to the expulsion of a member from the state Senate.
Ted Simons: You bet. As far as subpoena power, the committee has that?
Mary Jo Pitzl: The committee has that. The chairman has to okay the issuance of a subpoena. If he nixes that, people can complain, other members of the committee can lodge a complaint. They have to ponder that and get back within I think five to seven days with their explanation of why and the committee will have to reconsider that. What we don't know, or I don't know, what if we get subpoenaed and don't show up? You subpoena me in court, and if I don't show up, I'm facing some jail time. I don't know what the case is in the Senate. We could make joke that okay, then their punishment is they have to sit in the Senate for a while.
Ted Simons: Okay. The committee then listens to this whole thing, we go through the whole thing. The committee either dismisses the case, or what, decides disciplinary action is warranted? And then what happens?
Mary Jo Pitzl: Then it goes to the full Senate. If they dismiss it, end of story. If there is disciplinary action that flows on to the full Senate, the whole 29 members. Bundgaard can't vote on his own case. That's where time, become as big issue. We are almost to the end of September. They have got three months in the fall before the next session begins. I think there's a sense that they want this over and done with before they give the session in January. This could go on for quite a while.
Ted Simons: And already we've had Senator Bundgaard's lawyer wanting at least three members off of this hearing because of perceived bias?
Mary Jo Pitzl: This follows up on complaints made last week that Senators Gould and Taylor and Schapira are all biased because they have made statements impuning Bundgaard's integrity, basically saying he was a bad boy. That didn't go anywhere. The attorney came back and filed a request with Senate President Pearce to remove these three. Because he didn't file it as a technical formal ethics complaint, Pearce said, I can't act on this. That's not -- it didn't come in in a form that I want. So I'm going to deny the request and I'm confident that these three can carry out their duties. However, he had a very interesting caveat saying he does have concerns that the committee would go ahead and do an ethics investigation on a misdemeanor case that's already been through the courts. He obviously has some heartburn about that being taken to this level.
Ted Simons: He wasn't all that happy about it happening before it went to the courts because then it wasn't ajudicated yet. A lot of folks weren't happy. A lot of folks just really aren't happy about this down there, are they?
Mary Jo Pitzl: No, it's very uncomfortable trying to discipline one of your own. Do you really want to contemplate kicks out one of your own? A lot of people believe before this gets too far down the quasi judicial legislative road that, perhaps Bundgaard will be persuaded to step down from his seat. No indication from the Senate that's in the cards.
Ted Simons: Mary Jo, good to see you, thanks for joining us.
Mary Jo Pitzl: Sure.